Janet Reno secret testimony on leaks released

The steps by which the Justice Department conducts
investigations of unauthorized disclosures of classified
information ("leaks") were described by then-Attorney General
Janet Reno in 2000 testimony before a closed hearing of the
Senate Intelligence Committee.

At a moment when some, such as Senator Jon Kyl, are proposing to
enact new statutory penalties against leaks, it is noteworthy
that the Attorney General concluded that such penalties are
unnecessary.

"We believe that the criminal statutes currently on the books
are adequate to allow us to prosecute almost all leak cases,"
she testified.

Significantly, "We have never been forced to decline a
prosecution solely because the criminal statutes were not broad
enough."

(A similar judgment was offered by Attorney General John
Ashcroft in a 2002 report to Congress: "I conclude that current
statutes provide a legal basis to prosecute those who engage in
unauthorized disclosures, if they can be identified.")

Ms. Reno's testimony, formally released under the Freedom of
Information Act last week, provides perhaps the best single
overview of the Justice Department's handling of leak cases,
from the initial "crime report" (sometimes called a "crimes
report") that advises the Justice Department of the leak, to
the agency's submission of answers to eleven specific questions
about the leak, to the difficulties of conducting an
investigation and the Department's decision whether to
prosecute.

"While we are prepared to prosecute vigorously those who are
responsible for leaks of classified information,... I also want
to say that the Department of Justice believes that criminal
prosecution is not the most effective way to address the leak
problem," she said.

"In addition to the difficulties of identifying leakers, bring
leak prosecutions is highly complex, requiring overcoming
defenses such as apparent authority, improper classification,
and First Amendment concerns, and prosecutions are likely to
result in more leaks in the course of litigation."

"In general, we believe that the better way to address the
problem of leaks is to try to prevent them through stricter
personnel security practices, including prohibitions of
unauthorized contacts with the press, regular security
reminders, and through administrative sanctions, such as
revocation of clearances," she told the Senate Intelligence
Committee.

The Committee proceeded to endorse a new anti-leak statute
against her advice. It was enacted by Congress and then
vetoed in November 2000 by President Clinton.

The Justice Department Office of Public Affairs released the
Reno testimony in October 2003 to reporters from the Washington
Post and the Associated Press, who briefly quoted it in
passing. But others who requested a copy, including Secrecy
News, were told to file a Freedom of Information Act request.

Following a pointless and wasteful three-and-a-half year
"review" by the Justice Department, the testimony has now been
formally released under the FOIA without redaction.

But leak controversies remain ever green, even aside from the
proposed Kyl Amendment, the ongoing prosecution of two former AIPAC officials for allegedly mishandling classified
information, and so on.

The New York Sun reported that Rep. Tom Davis, the ranking
Republican on the House Oversight Committee, rebuked the
Justice Department last week for failing to properly account
for leak investigations that had been terminated.

See "Gonzales Said To Stonewall a GOP Query" by Josh Gerstein,
New York Sun, March 12: